Tuesday, June 2, 2009

Through The Legal Looking Glass: Myths

Let us begin our first Legal Looking Glass column by dispelling a few myths about the legal profession.

Myth No. 1: Lawyers Know the Law

Perhaps the greatest myth about attorneys is that attorneys know the law. They don’t. Contrary to popular belief, law school does not teach you what the law is; it teaches you how to understand the law and where to find it. That’s right. . . we look it up.

Indeed, the law is far too broad, and far too contradictory, for anyone to know the entire law (not to mention that the law varies from state by state and changes all the time).

The truth is that attorneys learn small portions of the law. They learn the history of the most important laws in law school, and then they learn specifics about the present state of the law as it becomes relevant to their practice.

Thus, when you ask a divorce attorney how to float a bond or you ask a corporate attorney about that DUI your cousin just got in Arkansas, the chances are that they know nothing about the law in question.

Myth No. 2: Most Lawyers Go To Court

The second biggest myth about the legal profession is that most attorneys go to court. In truth, few attorneys will ever see the inside of a courtroom (barring their own arrest). Indeed, many attorneys will never practice law. And of those that do, many go into transaction-related fields (like corporate acquisitions) rather than litigation. Many others will work for the government as attorney-advisors, who also do not go to court. Others will appear in court only to handle probate matters or to file bankruptcy pleadings.

Litigation is a specialize field, and while any attorney may appear in court, few do. By way of example, I once worked for a firm with over 1,200 attorneys. The firm specifically identified itself as a litigation-oriented firm. Yet, fewer than one in ten of the attorneys had ever been to court, and only a handful had ever taken part in a trial.

Myth No. 3: Many Cases Go To Trial

This brings us to the next myth. While Hollywood loves trials, the legal system doesn’t. Trials are difficult, expensive, and unpredictable. It almost always makes more sense to work something out, than to risk a trial. Indeed, the incentives to settle are so high for both sides that it is the rare case that ultimately proceeds to trial. There was a statistic a few years back that found that only 5% of criminal cases and 2% of civil cases actually went to trial. In my experience, those numbers are about accurate.

Myth No. 4: The USA Has More Lawyers Than Other Countries

Our final myth of the day involves something you will hear often in the media: the United States has more lawyers (per capita) than any other country! Shocking. . . and misleading. In the United States, any attorney with an active license may appear at court. Conversely, in the rest of the world, the legal system is often broken into two parts: those attorneys who can go to court (barristers) and those who can’t (solicitors). When they tell you that we have more attorneys than anyone else, they are comparing the number of attorneys in the United States against the number of barristers in others. If you count barristers and solicitors, the per capita numbers are about the same.


patti said...

i smell a myth-busters series!

i have long suspected lawyers didn't know the law. i mean, really, how could they? you have filled my learn something new today quota. thanky.

freedom21 said...

But one truth...the legal profession has a rate of alcoholism significantly higher than the general adult population.

LawHawkSF said...

Andrew: Speak for yourself. I know everything. LOL!

I should add that general practitioners of law are like general practitioners of medicine. They tend to be very conscientious, and a good place for your first contact with the legal system. They know a little about a lot, but even they know that specialization has become an absolute necessity in the practice of law.

So they will have an area or two of expertise, and if your problem is outside that area, he or she will usually refer you to a specialist. In some states, certain legal specializations require additional certification.

My legal consultation business since retirement is strictly for lawyers (not for clients) who are preparing for trial and are either inexperienced, or need help in a particular area of law which they will have to argue before the court. If one of them accidentally calls me to ask about a probate case, my answer usually starts with "what's probate?" If it ain't family law, criminal law, or certain appellate procedures, I'm not going to be of much help. Ditto for teaching law. If one of the schools needs a real property instructor, I'm going to tell them that I nearly flunked my real property course.

LawHawkSF said...

Freedom21: One profession has an even higher rate--dentistry. Apparently dentists feel the love even less than lawyers.

AndrewPrice said...

Freedom21, I believe that you are correct. I know that alcohol treatment programs are a big issue of most state bars and I personally know dozens of lawyers who are recovering from drug or alcohol addiction.

Lawhawk, you're right about specialist. There are several fields that are simply too specialized for non-specialist attorneys to even delve into them. But even beyond those fields, attorneys only know a very small portion of the law, and need to look up the rest.

John Keats said...

I consider myself a relatively educated person, and this post blew my mind. I feel like I know literally nothing about lawyers. Thanks, Hawk. Thanks, Andrew. You guys are confidence suckers and bloodsuckers.

freedom21 said...

I was shocked on the first day of law school at orientation when our Dean started out "When you get an addiction...." There was no IF about it. I kind of chalked it up to the fact that we all chose to be in New Orleans for law school.

As for specializing, I have my certificate in Admiralty law...Yet, in the real world, I've never even touched the stuff.

I think those dentists probably just get bored and have all that NO2 sitting around :)

AndrewPrice said...

Patti, you're welcy.

John, I have never once been caught sucking blood.

Freedom21, I don't know what the numbers are, but I do know that they are high. I don't know why though, maybe stress?

Admiralty Law!!? Wow! That's very admirable. Har de har har.

freedom21 said...

You'd be shocked at how many "greenies" do admiralty. I remember the first day of my marine pollution course. I walked out and said..."hmmmm...i thought it was going to be a how-to class". That ruffled a few feathers :p

As for the substance abuse problems...I can't imagine that what lawyers do is any more difficult than what other people so it's not likely the "stress" issue. I have noticed that a lot of lawyers are just generally intense...about everything. Drinking probably just starts out as one of those things they are intense about. Or as a way to relieve the intensity. Habits are easy to develop and hard to break.

BevfromNYC said...

True on all counts. I've worked at a top litigation firm for years as a paralegal and I have prepped for countless trials. Almost always they settled before the first day or at jury selection. Rarely do we take a case to verdict.

SQT said...

I took a grand total of one law class in school-- a requirement with a Journalism degree-- so I knew enough to know that there's no way any lawyer could possibly know more than they could look up at any one time. My class concentrated on free speech, entertainment law, libel, slander etc. and it pretty much focused on decisions made in cases and how to look them up and apply the precedents to a current situation. That is the sum total of what I know. I got an A in the class though...Okay, an A-.

Captain Soapbox said...

As soon as I read "Admiralty Law" I started humming "Rule Britannia" to myself.

I know about both stress and intensity levels, but in my line of work it usually doesn't turn into addiction (because then people would wind up dead) but instead manifests itself in odd quirks. We all have them, some of us make Lt. Col. Killgore from Apocalypse Now look like a wannabe in the "eccentricity" department.

As for the lawyer myths, I actually knew those. Although I'll admit if it wasn't for A Fish Called Wanda I'd think a barrister was a guy that worked at a swanky bar, and a solicitor was someone who worked for Eliot Spitzer.

When I went to High School we actually had a semester on the law and a semester on the government in 11th grade. I don't think they do that anymore though, probably have a semester on saving the planet and a semester on tolerance or something. Then I had to take a couple of courses on military law later, so in general I know exactly enough about the law to make me dangerous. Which actually puts me on a par with most lawyers I know personally, present company excluded of course.

John Keats said...

A lot of teachers in school here drink heavily, and the principal was formerly a high-functioning alcoholic. (Actually, he was a rehab counselor while he was an alcoholic.)

I wonder which occupation provides the highest stress work environment, or the most alcoholics?

Off topic, anyway. Sorry.

AndrewPrice said...

Bev --

I look forward to your take on our future columns.

Freedom21 and John --

On addiction, I have dealt with attorneys who have lost their licenses, and I've been told that the real drug of choice for attorneys is not alcohol but cocaine. I can honestly say that I've never tried it and I rarely drink (don't like the taste), so this is all hearsay, but I've been told that lawyers gravitate toward cocaine because it gives you energy and a sense that you are all-powerful.

On environmental law, I got an LLM in government contracts. (An LLM is like an advanced law degree.) At that same time, there were others at the school getting an LLM in Environmental Law. Most were greenies, but halfway through the course they discovered that the only people who hire environmental attorneys are polluters. This bothered them, but not enough to turn down the job offers.

Captain --

Having just enough knowledge to be dangerous is the problem with many young lawyers. It takes a while to figure out what you DON'T know. As for present company, Lawhawk and I have extremely unusual backgrounds for lawyers -- much broader than you normally find. Thus, we're more fun at parties.

LawHawkSF said...

Andrew has that right. I look really cool with a lampshade on my head. And oh boy, did I do some fancy drinking when I was still in active practice. Today, a glass of wine and I'm ready for an eight hour nap.

Captain Soapbox said...

Yeah well you guys would be fun at parties, most lawyers...not so much.

In fact the most annoying person at the last party I went to was a newly minted lawyer, who started getting in my face about the Geneva Conventions. Apparently he read them once, but didn't actually understand them. Yet insisted he did, and wanted to cause a fuss since I was an "easy" target being the "evil, dumb, knuckledragging, military type" in the room, which he assumed was also a room full of liberals. Big Mistake. A good time was had by all...

BevfromNYC said...

"Having just enough knowledge to be dangerous is the problem with many young lawyers."

It's amusing to watch newbie lawyers enter the wonderful world of long established products liability litigations like asbestos. They always want to reinvent the wheel to prove how clever they are. What they can't see is that about every thought that could be thought has been thought of in these litigations, but, God bless them, they keep trying!

Writer X said...

I'm with Patti: Myth-Buster Series all the way! Hey, if those guys on SciFi can have a GhostBusters series, why can't a couple of lawyers ride around the country exposing lawyer/legal myths? Just go easy on the tattoos and loud t-shirts.

Captain Soapbox said...

And what's wrong with loud shirts? I have a stunning (literally) collection of Hawaiian shirts that would put Magnum to shame.

No tattoos though. And not a lawyer so I guess I can't be on the show. Bah!

freedom21 said...

Capt: Whenever a liberal asks me why I don't like Obama, I basically tell them that he would be such a drag at a party. I'd imagine that he would be just as fun as the Geneva Convention Guy. It's not a good argument, but it's effective when dealing with hopey-changey emoter voters.

I'm inked up...can I still be on the show!?

Captain Soapbox said...

Freedom that's pretty nice of you, when a liberal asks me why I don't I just say I don't have brain damage or like snake oil salesmen posing as politicians. That usually makes them pretty miffy though. Since I like doing that, it's all fine with me though.

I'm with you about him probably being a horrible party guest too though, you just know he's one of those guys that can't quit talking about how great he is to anyone that'll stand there and listen. And if you try to escape, Michele just goes all Mongo on you and holds ya there until he's done talking about how great he is.

John Keats said...

I'm not a lawyer, but I have loads of tattoos. And I read Snopes.

Skinners 2 Cents said...

It's been a kick peering behind the green curtain.

I've got a question or questions for you about the 3rd branch of government.

Do you think the Supreme Court is operating inside it's constitutional guide lines?

Do you think that law being practiced in the US is what the founding fathers had envisioned. or were they all just tired when it came to this branch of government?

Captain Soapbox said...

Again, Not a Lawyer. But in my opinion based on reading a lot of documents that the Founders wrote I'd have to say:

Do you think the Supreme Court is operating inside it's constitutional guide lines?

To me the short answer is: sometimes. The longer answer being that it usually depends on the makeup of the Court and how many Strict Constitutionalists you have on it compared to how many more Activist Justices. In my opinion (again: Not a Lawyer!) only when Strict Constitutionalism has the upper hand, does the court consistently operate within the bounds of the Constitution.

Do you think that law being practiced in the US is what the founding fathers had envisioned. or were they all just tired when it came to this branch of government?

I don't think any failings of the Supreme Court recently can be definitively laid at the feet of the Founders, because as I've read it even when "activism" as it was (and which was much less "active" than is typically thought of as Activism today) appeared in the days when they were still around, they generally were not in favor of it. They assumed, correctly in my opinion, that all 3 branches of the government would take the Constitution into account when they were working. Congress would apply Constitutional tests to bills before they'd pass them, the President would apply a Constitutional test to any bill before he'd sign, and only if someone later questioned the Constitutionality of something would it go to the Court for a final decision. But what has happened is that Congress and the Executive Branch have gotten into the habit of not doing so and allowing the Supreme Court to handle all Constitutional tests as things are brought to the Court, they pass and sign bills with the assumption that if something is unconstitutional then the Court will say so without them having to worry about it during the crafting or signing of said bills.

The Really Are Lawyer guys will probably be able to give you better answers than those, but since I'm still awake I figured I'd give you my "layman with an interest" opinion on it. They're probably not on target, but I'm fairly sure I got somewhere inside the range on it. Hopefully.

AndrewPrice said...

Skinners2Cents, the short answer is "no."

The Court has gone through several periods where it transformed the nature of law in this country, and I think that we are so far beyond the point that the Founders envisioned that they would probably have removed the Court from the Constitution if they had known.

While these changes have happened in many distinct areas, perhaps the most consequential changes occured when the Court stopped striking down laws that were vague or poorly-defined and instead began to fill in the details that Congress had left out.

This change began in the Roosevelt era (though both sides are guilty) and probably lead to the real activism that we saw in the late 1950’s through the early 1980s that did so much harm to the original Constitution.

Moreover, this change allowed Congress to abdicate its role of creating clear and understandable laws that addressed specific concerns and imposed clear requirements. Instead, Congress can now pass vague laws with unclear purposes and the courts will take it upon themselves to hash out the details. The prime example of this is the Americans With Disabilities Act, which failed to define what constitutes a disability and what steps employers/businesses would need to take to accomodate that disability. Indeed, when they passed the ADA, they made it clear that the courts would be left to fill in the details. That could never have happened 200 years ago.

Beyond this, there are also a myriad of issues where the Supreme Court has simply abandoned the Constitution. Take McCainFeingold, for example, where the Court allowed limits to be placed on political speech.

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